Chinese Government Lacks the Qualifications for Membership on UN Human Rights Council

November 7, 2013 Comments Off on Chinese Government Lacks the Qualifications for Membership on UN Human Rights Council

(Chinese Human Rights Defenders, November 7, 2013) – Chinese Human Rights Defenders is concerned that the government of China, which is seeking a seat on the United Nations Human Rights Council (HRC) for a third time, has clearly failed to comply with the standards established by the UN General Assembly. CHRD urges UN Member States to take into account, before casting their votes to elect members of the HRC on November 12, “the contribution of candidates to the promotion and protection of human rights,” their record in upholding “the highest standards in the promotion and protection of human rights,” and demonstrations that candidates have “fully cooperated with the Council,” as required by UN General Assembly Resolution 60/251.

The Chinese government is responsible for systematic and gross violations of human rights in China. It has failed to take effective measures to address these violations, and it has aggressively persecuted civil society activists for defending human rights, including seeking participation in UN HRC activities. China has excluded independent members of civil society from playing important roles in promoting and protecting human rights at the national and international levels. On the basis of these considerations, we feel strongly that putting China on the Council for a third term would further undermine the ability of the HRC to promote and protect human rights.

The Chinese government’s poor human rights record should disqualify it for a seat on the UN Human Rights Council, voting for which takes place on November 12.

In our assessment of the Chinese government’s human rights qualifications for HRC membership, we mainly refer to the UN and HRC’s own important requirements and UN rights bodies’ (treaty bodies, independent experts) own findings. The measures used for this assessment are not the only measures. There are other areas of concern that should also be considered in evaluating China’s qualifications. But CHRD will focus on the following ones:

The Chinese government’s rejection of the vast majority of 2009 UPR recommendations, and failure to implement those recommendations that it “accepted.”

Failure to “uphold the highest standards in the promotion and protection of human rights” in treaties that China has ratified.

Failures to ratify the International Covenant on Civil and Political Rights, which China signed in 1998, and to sign or join other treaties and Optional Protocols.

Refusal to comply with universal human rights standards and the substitution of them with its own rules in responses to Special Procedures’ inquiries about individual complaints.

Failure to extend invitations for visits to most requests from Special Procedures and the UN High Commissioner for Human Rights. The last visit to China by a High Commissioner was in 2005 by Commissioner Louise Arbour, who was subsequently denied a visit to Tibet in 2008.

Failure to honor its own repeated “commitments” made in previous “voluntary pledges” when seeking election to HRC.

Failure to honor the obligations contained in the United Nations Charter and the Universal Declaration of Human Rights (UDHR), which all UN member states must accept.

We elaborate on these areas of concern below:

1. China rejected a vast majority of 2009 UPR recommendations, and failed to implement those recommendations that it “accepted” in that first cycle of review of its human rights record. The Chinese government threw out 117 recommendations, more than two-thirds of the total UPR recommendations from 2009, many of which were made by multi-state parties, and accepted only 45 recommendations.[1] For instance, China rejected recommendations concerning: torture, the death penalty, arbitrary detention (including abolishing Re-education through Labor camps and “black jails”), eliminating abuse of psychiatric commitment, and ensuring protection of religious freedom and cultural rights, especially in Tibet and Xinjiang. China also rejected recommendations about ratifying the International Covenant on Civil and Political Rights (ICCPR) and establishing national human rights institutions.”[2]

China, however, has failed to implement some of the recommendations that it “accepted.” For example, China accepted the recommendation to “create conditions for the early ratification of the ICCPR,” but China has actually tightened restrictions on civil and political liberties since 2009. China also accepted the recommendation to “bridge the gap in economic and social development between rural and urban areas and among regions.” Yet, according to government data, China’s Gini coefficient was 0.474 in 2012, higher than the warning level of 0.4 set by the UN, and the average income of urban residents is about three times that of rural residents.[3] And in other areas, China has also not implemented the “accepted” recommendations to: “adopt further measures to ensure universal access to health and education and other welfare for rural communities, minority regions, disadvantaged families and the internal migrant population,” “continue to implement the policy of strictly controlling and applying the death penalty,” or “further ensure ethnic minorities the full range of human rights including cultural rights.”

2. China has continued acts of reprisals and intimidation against civil society activists and human rights defenders for participating in UN activities or cooperating with the UN human rights mechanisms[4]: China has criminalized individuals who have sought to cooperate with the UN human rights system, including with the Human Rights Council. For instance, in September 2013, police arrested Cao Shunli after abducting her and another activist, Chen Jianfang, when they tried to board flights to Geneva to participate in a training session on UN rights mechanism and attend the 24th Session of the HRC. Police arrested a third activist, Zhou Weilin, who was to attend the same training, one week before he was due to travel. Cao, who led a sit-in that started in June 2013 to demand a role for civil society in national preparation for the UPR on China, has been charged with “creating a disturbance.” Zhou faces a criminal charge of “gathering a crowd to disrupt the order of a public place.” Chen went missing while police raided her mother’s home in Shanghai on November 4.

These incidents have taken place after the UN Secretary-General’s 2012 report on reprisals mentioning similar acts committed by Chinese authorities.[5] In fact, every year between 2006 and 2013, authorities have threatened or punished Chinese activists and lawyers attending the same training programs involving UN mechanisms and participation in a HRC session or treaty body reviews in Geneva. In 2012, authorities jailed Peng Lanlan for one year for demanding participation in drafting the National Human Rights Action Plan. These acts of reprisal and intimidation by the Chinese government have undermined the effective functioning of the HRC because human rights defenders are not free or safe to seek cooperation with it.

Meanwhile, the Chinese government continues to commit acts of intimidation and reprisals against relatives of victims of rights abuses, human rights defenders, and lawyers who have provided legal or other assistance to victims. In its 2009 review, the Committee on the Elimination of Racial Discrimination (CERD) found that China failed to ensure that lawyers can exercise their profession freely, in law and in practice, while providing legal assistance to victims of rights violations. CERD recommended China “promptly investigate all allegations of harassment, intimidation, or other acts impeding the work of lawyers; and revise all laws and regulations that were inconsistent with the Lawyers’ Law and international standards.”[6] China has not implemented this recommendation, and there have been increasing acts impeding the work of human rights lawyers.

There exists scant Chinese domestic legal and administrative provisions that can conceivably facilitate, promote, and protect an independent, diverse, and pluralistic civil society. Instead, the Chinese government has waged several nationwide crackdowns on civil society activism since 2008—the crackdown on those who endorsed the Charter 08manifesto on human rights and democratic reform, during which China jailed one of the leaders of the movement, the dissident writer Liu Xiaobo, who won the 2010 Nobel Peace Prize from a Chinese prison; the crackdown on demonstrations for religious and political freedoms in Tibet; the clampdown after an online call for “Jasmine rallies” in the wake of the Arab Spring; and the ongoing crackdown on freedom of peaceful assembly, association, and expression.

3. China has failed to “uphold the highest standards in the promotion and protection of human rights” in treaties that China has ratified. China has ratified six of the nine core human rights treaties, but it has taken meager measures to put into practice the protections of specific rights in these treaties. The six treaties ratified by China primarily deal with social and economic rights—rights of women, children, persons with disabilities, and rights to education, health, work, as well as freedom from racial discrimination, with only one treaty that specifically protects the right to freedom from torture and inhumane treatment. However, even in these areas, reviews by relevant treaties bodies since 2006, when China first sat on the Human Rights Council, have found vast discrepancies between China’s treaty obligations and conditions on the ground, despite adoption of new laws and regulations, as illustrated below.

Convention on the Rights of Persons with Disabilities: In its 2012 review, the Committee on the Rights of Persons with Disabilities (CRPD) found that China has failed to “fight the widespread stigma in relation to children with disabilities and revise its strict family planning policy, so as to combat the root causes for the abandonment of boys and girls with disabilities.”[7] CRPD “finds it disturbing that many persons with actual or perceived impairments are involuntarily committed to psychiatric institutions for various reasons, such as being petitioners.”[8] Psychiatric confinement remains highly vulnerable to abuse, despite the adoption of the Mental Health Law (MHL), which went into effect in May 2013. The new law does not provide sufficient legal protections for those who are involuntarily committed and falls short of complying with the CRPD.[9] The committee was also “deeply troubled by reported incidents of abduction and forced labour of thousands of persons with intellectual disabilities, especially children, such as the occurrence of slave labor in the provinces of Shanxi and Henan.[10]

International Convention on the Elimination of All Forms of Racial Discrimination: In its 2009 review, the Committee on the Elimination of Racial Discrimination (CERD) found “de facto discrimination against internal migrants” in China and recommended that “China implement its decision to reform the national household registration system (hukou) and ensure that internal migrants, in particular members of ethnic minorities, would be able to enjoy the same work, social security, health and education benefits as long-term urban residents.”[11] However, suppression of ethnic minorities and religious freedom has only become more severe since 2009 and, as of today, China has not substantially reformed the hukou system.

Convention against Torture and Other Cruel, Inhuman or Degrading Treatment: In concluding its 2008 review, CAT shared CERD’s deep concerns about “acts of discrimination against and ill-treatment of persons of ethnic minority groups, in particular the Tibetans and the Uighurs.”[12] CAT found “routine and widespread use of torture and ill-treatment of suspects in police custody, especially to extract confessions or information to be used in criminal proceedings”; the abuses in custody included a high number of deaths.[13] Since 2008, torture and other forms of mistreatment have continued and they extend beyond detention facilities and are practiced by “city administration and law enforcement” (chengguan) officers and family planning officials.[14] Beatings and violence are also common during forced evictions and land seizures.[15] Judges routinely ignore claims of torture even when lawyers present evidence of torture at court hearings, despite the fact that the newly amended Criminal Procedural Law (Article 54) excludes confessions obtained through torture from criminal proceedings. The Chinese government has failed to show evidence that it has implemented CAT’s recommendation from 2008 to reduce the numbers of death sentences, and it has not made available specific data on “death penalty cases.”[16] The government’s claims for progress in these areas since 2008 cannot be verified due to the government’s persistent classification of the data as “state secrets,” despite requests from the Human Rights Committee, which monitors implementation of the International Covenant on Civil and Political Rights, that the mainland Chinese government declassify the data on executions and death sentences[17] China has continued to execute thousands of people and has sentenced thousands to death every year since 2007, more than any other country in the world.[18] This remains the case in 2012, even after a few changes were made in laws and regulations.[19] CAT also expressed deep concerns in its 2008 review about “theextended use of all forms of administrative detention, including ‘re-education through labour,’ secret detention facilities, including the so-called ‘black jails’.”[20] Despite some official discussion in early 2013 about “halting” the use of RTL, the detention system has not been officially abolished. “Black jails” continue to hold petitioners despite the government’s denial that these makeshift and temporary facilities even exist.

Convention on the Rights of the Child: The Committee on the Rights of the Child (CRC)’s September 2013 review found that “infanticide, particularly of girls and children with disabilities remain pervasive, a problem which is exacerbated by mainland China’s ‘One-Child Policy.’”[21] CRC also found “continuous violations of rights and discrimination against Tibetan and Uyghur children and children of Falun Gong practitioners in mainland China, including their right to freedom of religion, language and culture” and “the persistence of discrimination against children with disabilities, children of migrant workers, refugee and asylum seeking children, and children infected with or affected by HIV/AIDS, particularly in relation to education, housing, health care and other social services” as well as “pervasive discrimination against girls”[22] CRC noted “with regret” that China did not fully implement its 2005 recommendation to “explicitly prohibit by law corporal punishment in the family, schools, institutions and all other settings, including penal institutions.”[23] CRC is “seriously concerned about the persistence” of “severe regional and rural-urban inequalities and disparities” and “the inadequate resources allocated to the local governments for the implementation of children’s rights.”[24] CRC is also “deeply concerned about the obstacles faced by NGOs and the limited scope for human rights defenders and journalists to report, inter alia, on children’s rights violations in mainland China due to continuous threats, police harassment, enforced disappearances and arrests of human rights defenders” and about “government persecution of families, including children of human rights activists and dissidents, and retaliation and harassment of families advocating for children’s rights.”[25]

4. China has failed to ratify the International Covenant on Civil and Political Rights.

The level of ratification of core international human rights treaties provides another important measure of the level of a Member State’s cooperation with the Human Rights Council. Since it signed the ICCPR in 1998, China has defied international calls from within the UN system (including UPR, treaty bodies, and Special Procedures) and demands from members of civil society in China to ratify this core human rights treaty, one of the three documents that make up the “International Bill of Rights.” Moreover, China has failed to honor the fundamental responsibility that comes with its “signing” (though without ratifying) the ICCPR, particularly the responsibility not to undermine the objectives of the treaty. Since 2006, the government has intensified its restrictions and curtailment of key civil and political rights, the protection of which is the clear objective of ICCPR. Suppression of those fundamental rights include rights to freedom from torture and arbitrary detention, right of the accused to due process and judicial review, right to freely choose government representatives through fair periodic elections, and freedom, among others, of expression and opinion, association, peaceful assembly, thought, conscience, and religion.

In addition, China has not signed two other important human rights treaties: International Convention on the Protection of the Rights of All Migrant Workers and Members of Their Families, and International Convention for the Protection of All Persons from Enforced Disappearance. China also has refused to join the Optional Protocol of the Convention against Torture (OPCAT). China has not accepted or kept reservations on key provisions in some treaties that it has ratified, such as Article 20 (about inquiry procedures) in CAT, Article 8.1(a) (right to freely join and form trade unions) of ICESCR, Article 22 (about referring to International Court of Justice (ICJ) for adjudication of disputes) of CERD, Article 29(1) (about referring to ICJ for adjudication) of CEDAW, and Article 6 (about every child’s inherent right to life) of CRC.

5. China has refused to comply with universal human rights standards used by Special Procedures in reviewing individual complaints. The government has insisted on its own terms in its responses to UN Special Procedures’ inquiries and allegations about rights violations of Chinese individuals. Though China responds to communiqués from Special Procedures (SPs) at a rate higher than the average UN Member State, China’s responses consistently dismiss the allegations of rights abuses and apply its own set of criteria. The government’s replies tend to treat the alleged victims or persecuted human rights defenders as “criminals” simply because they were handled by the Chinese legal system, and as such, these individuals were treated as if they were not entitled to specific protections of their human rights. Consequently, the government’s responses serve the purpose of defending the violations of the specific individuals’ human rights and undermine the SPs’ objectives to uphold international standards in promoting and protecting rights.

The fact that the Chinese government may have put up an appearance of “cooperation” with Special Procedures thus should not substitute for the lack of earnest government investigations of alleged rights abuses that the independent experts have asked it to clarify. One measure of the seriousness of these allegations is the thematic Special Procedures’ numerous opinions and statements and their communications with the Chinese government. The following are a few examples from the last couple of years:

The Working Group on Arbitrary Detention (WGAD) adopted numerous opinions in the past few years about the arbitrary deprivation of liberty of many Chinese citizens, including Liu Xiaobo, Chen Guangcheng, Gao Zhisheng, Guo Quan, Chen Wei, Liu Xianbin, Gulmira Imin, Qi Chonghuai, Liu Xia, Thamki Gyatso, Tseltem Gyatso, Kalsang Gyatso, and others, demanding their immediate release and adequate compensation.[26] WGAD ruled in 2012 that China’s use of “inciting subversion against state power” in criminalizing free expression violates Article 19 of UDHR.[27]

In 2012, the Working Group on Enforced and Involuntary Disappearance (WGEID) expressed grave concern about reports of the high number of alleged disappearances which took place during the “Jasmine crackdown” in 2011, when at least two dozen human rights defenders were disappeared and held for weeks or months at a time.

In February 2013, UN independent experts on independence of judges and lawyers, summary executions, torture, and violence against women asked the Chinese government to clarify allegations of a risk of imminent execution, after proceedings that did not comply with international human rights law on fair trial and due process guarantees of Ms. Li Yan. Ms. Li had been sentenced to death for the murder of her husband after she was subjected to prolonged domestic violence and after the repeated failure of police authorities to protect her and investigate the abuses against her.

In January 2013, SPs on arbitrary detention, disappearances, freedom of expression, human rights defenders, and independence of judges and lawyers asked the Chinese government to clarify allegations of arbitrary detention in an unknown location of human rights defender Zhu Chengzhi.

In December 2012, Special Procedures on arbitrary detention, freedom of expression, freedom of peaceful assembly and of association, human rights
defenders, and torture asked the Chinese government to clarify allegations of the arrest and detention of, and the alleged use of excessive force against, peaceful demonstrators in the Tibet Autonomous Prefecture in Qinghai Province on November 26, 2012, after the government’s bloody crackdown on students protest in Gonghe County (Chabcha in Tibetan).

In July 2012, UN independent experts on arbitrary detention, freedom of expression, freedom of peaceful assembly and of association, human rights defenders, independence of judges and lawyers, summary executions, and torture asked the Chinese government to clarify allegations of torture in prison and investigation deficiencies on the death in hospital of the prominent human rights activist Li Wangyang.

6. China has failed to extend invitations to most of the independent experts whohave specifically requested visits, and no visit by the High Commissioner for Human Rights took place since China began its first term on the HRC in 2006. The last visit by the former High Commissioner Louise Arbour was in 2005. But Arbour’s request to visit Tibet to assess the ongoing crisis in 2008 was denied by the Chinese government. During its 2009 UPR, China said that High Commissioner Navi Pillay could visit the country at “a time convenient to both sides.” China, however, never facilitated a trip for her visit. Chinese officials considered Ms. Pillay’s statements on human rights situation in China, especially in Tibet, were “critical” of the government. China has not issued standing invitations to the thematic Special Procedures. Issuing and honoring an effective standing invitation to the Special Procedures is an important part of cooperation with the Council. China has not responded to 12 requests for visits by SPs, some of which were made in 2005. At this time, only one visit is scheduled – by the Working Group on Discrimination against Women in Law and in Practice (December 12-23, 2013), which China announced during last month’s UPR. And one other invitation was extended in 2004 but no dates were scheduled (for SP on Freedom of Religion, which last requested a visit in September 2006). Since 2006, when China became a member of HRC for the first time, the country has had only one SP visit – by the Special Rapporteur (SR) on Right to Food (December 2010). There have been only four other visits since 1997 – by SR on Torture (2005), SR on Right to Education (2003), and Working Group on Arbitrary Detention (twice: 1997, 2004). To those very few SRs who have visited, China has failed to regularly provide information on how the recommendations arose from the visits have been implemented.

7. The Chinese government has not honored its own repeated “commitments” made in its previous “voluntary pledges” to the “promotion and protection of human rights and fundamental freedoms of the Chinese people,” which it submitted for the first and second elections of HRC membership, in 2006 and 2009, respectively. The UN resolution on establishing the HRC decided that “when electing members of the Council, Member States shall take into account the contribution of candidates to the promotion and protection of human rights and their voluntary pledges and commitments made thereto.” The same promise is now repeated in China’s “voluntary pledge” for the 2013 election: the government “respects the principle of the universality of human rights and has made unremitting efforts for the promotion and protection of the human rights and fundamental freedoms of the Chinese people.” China has not kept its previous “voluntary pledges” to the UN General Assembly, as CHRD stated in 2009. The continuously deteriorating human rights situation in China since 2006 makes this latest “pledge” ring hollow.

8. China has clearly failed to honor “the obligations contained in the United Nations Charter ” and the Universal Declaration of Human Rights (UDHR), which all UN Members States must accept. The UN Charter requires all States to perform the obligation of “promoting and encouraging respect for human rights and for fundamental freedoms for all without distinction as to race, sex, language, or religion.” However, the Chinese government has not simply failed to “promote and encourage” respect for human rights, but also systematically abrogated basic rights and fundamental freedoms, specifically those rights and freedoms elaborated in the UDHR, particularly under Article 2: equal rights without discrimination of any kind, such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status; Article 5: right to freedom from torture or to cruel, inhuman or degrading treatment or punishment; Article 9: right to freedom from arbitrary arrest, detention; Articles 10 & 11: right to fair trial and access to justice; Article 18: right to freedom of thought, conscience and religion; Article 19: right to freedom of opinion and expression; Article 20: right to freedom of peaceful assembly and association; Article 21: right to take part in the government, through freely chosen representatives in periodic and genuine elections; Article 23: right to form and to join trade unions; and equal right to adequate standard of living, health, education and housing. The Chinese government’s systematic violation of human rights has called into question its good standing as a member of the UN, hence its fitness as a member of the HRC.

[1] United Nations, “Report of the Working Group on the Universal Periodic Review: China (A/HRC/11/25)” October 5, 2009. http://daccess-dds-ny.un.org/doc/UNDOC/GEN/G09/162/99/PDF/G0916299.pdf? OpenElement.

[4] A respect and support for the important role played by civil society, non-governmental organisations and human rights defenders in the promotion and protection of human rights at the national and international levels, including in the Human Rights Council was established in Article 38 of the Vienna Declaration and Programme of Action, GA Resolution 60/251, and the Human Rights Council’s Institution Building Package.

[5] Report by the UN Secretary General, Cooperation with the United Nations, its representatives and